Copy Link Share Share Comment

Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.

Since the demise of Roe v. Wade, red-state lawmakers have been looking for political cover for unpopular criminal abortion bans, and a simple strategy has emerged: stressing that bans in theory afford access in exceptional cases that voters overwhelmingly support, such as medical emergencies. The goal of this maneuver is straightforward. For voters who are conflicted about abortion, a focus on exceptions makes bans moderate and reasonable. But a major decision on Tuesday by the Wyoming Supreme Court striking down the state’s abortion ban suggests that abortion exceptions are fast becoming a Catch-22 for the GOP—a potential political lifeline that can create real trouble in court.

To appreciate why abortion exceptions can create legal headaches for Republicans, it helps to understand the Wyoming litigation. A group of patients, doctors, and advocates challenged the constitutionality of the state’s abortion bans under Article 1, Section 38 of the Wyoming Constitution, passed as part of the backlash to President Barack Obama’s Affordable Care Act. The amendment recognizes a right to make health care decisions. The plaintiffs argued that this right was fundamental and encompassed people’s decision to terminate a pregnancy. The state responded that abortion wasn’t health care—it was the intentional taking of human life—and that even if abortion were health care, the state’s interest in protecting prenatal life was enough to justify its ban. This focus on protecting life made strategic sense; all five justices on the Wyoming Supreme Court were appointed by Republicans, and polls suggest that even Americans who support legal abortion think fetal life has value, despite their opposition to the sweeping criminalization of decisions about pregnancy.

Advertisement

Advertisement

Advertisement

Advertisement

© Slate